Don’t fear the Levy report

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In a debate with me at Jewish Ideas Daily, my friends and colleagues Joseph Weiler and Yaffa Zilbershats vigorously oppose adopting the legal conclusions of the Levy Report, while disagreeing with the Levy Report’s legal arguments regarding the applicability of the law of belligerent occupation to the West Bank.

I disagree with the authors’ legal arguments for reasons I shall explain below. But what disturbs me far more is their predictions of disaster if Israel holds to its traditional interpretation of its legal rights as per the Levy Report. The authors claim that the Report’s legal analysis will force Israel either to “undermine the Zionist ideal of Israel as the state of the Jewish people” by granting citizenship to the Arabs living in the West Bank and threatening Israel’s Jewish majority, or, alternatively, to “adopt a governing structure for the territories amounting to a form of apartheid.”

Frankly, this argument is preposterous. Having legal rights does not limit policy options; if anything, it expands them. Whether Israel adopts the Levy Report or not, Israel has the same policy options – to surrender the West Bank unilaterally, to compromise on its territorial rights in an agreement with the PLO (should the latter ever return to the negotiating table), to take advantage of its rights and expand Israel’s jurisdiction, or to mix and match among these possibilities.

The scenarios offered by Weiler and Zilbershats are, at best, fanciful.

The first scenario relies on a misplaced fear that Israel would cease having a Jewish majority if it were to incorporate the West Bank. The demographics of the West Bank are a matter of debate, but even using the most inflated estimates of the Palestinian population, incorporation of the West Bank would boost the Arab percentage of Israel’s population to roughly 40% (the more realistic estimates would put the Arab percentage at closer to 35%). Incidentally, if Palestinian Arabs in the West Bank were to act like their brethren in Jerusalem and the Golan Heights in response to the extension of Israeli law, they would overwhelmingly reject Israeli citizenship. Even with the West Bank in the fold, Israel would continue to be both Jewish and democratic.

In any event, most Israelis reject incorporating the West Bank in toto into Israel. Most Israelis continue to believe that notwithstanding Israeli rights in the West Bank, Israel’s best option is to continue holding out territorial compromise as an inducement for Palestinian Arabs to end their war against Israel, while sharing governance with the Palestinians in the interim. Regardless of whether Israel’s government adopts the Levy Report’s legal analysis, this is Israel’s most likely policy in the near future.

Weiler’s and Zilbershats’s second scenario copies a libel brought to the discussion by Aeyal Gross. None of the authors of the Levy Report support apartheid or argued for it, in or out of their report. None of the eminent legal authorities cited by Weiler and Zilbershats would ever dream of supporting apartheid. No major political party in Israel has ever favored adopting an apartheid regime in the West Bank, and that is not about to change. Law enforcement authorities have never carried out an apartheid regime in the West Bank and there is no chance they ever will. The authors know all of this. In suggesting there is a possibility of Israel adopting such a regime, the authors aid one of the most horrific slanders against Israel and join themselves to an ongoing campaign to delegitimize the Jewish state. The authors have made a terrible mistake in following Gross into this miasma.

Weiler’s and Zilbershats’s legal arguments are more conventional. They claim that Israel’s traditional position that the West Bank is not under de jure belligerent occupation, as endorsed by the Levy Report, has been rendered irrelevant by three developments: Security Council Resolution 242, a “consensus” regarding the status of the West Bank, and the acknowledgment of Palestinian rights of self-determination.

The authors err on all three counts.

Security Council Resolution 242 does not address the question of belligerent occupation, nor does it address the question of which state, if any, has territorial sovereignty over the West Bank. Even if Resolution 242 did address those questions, it would not matter, since Resolution 242 is not a legally binding document and the Security Council lacks authority to award territorial sovereignty or create belligerent occupations. Resolution 242 is politically relevant because it has served as the basis for peace negotiations since 1967 and no doubt will continue to play that role in the future. 242 has been referenced by all of Israel’s peace agreements (with Egypt, Jordan and the PLO) and yet none of those agreements required Israel to surrender potential claim to sovereignty in the West Bank nor to agree that the West Bank is de jure under belligerent occupation.

It may be true that, as the authors guess, most international lawyers believe that Israel has the status of a belligerent occupant in the West Bank, although I am not aware of any hard data on the subject. But of the many ways to resolve authoritatively questions under international law—such as arbitration or treaty—polling international lawyers is not one. Whatever the views of most international lawyers, the rest are entitled to a different view, and Israel is entitled to side with the minority view, if indeed it is the minority.

The authors are certainly right that Palestinians today have a right of self-determination that has been recognized by Israel. But it is not clear why this is germane. The Palestinian right to self-determination does not erase the Jewish right to self-determination in the same land, nor give the Palestinians territorial sovereignty, nor make Israel a belligerent occupier. Quebecois, Kurds, Tibetans, Western Saharans, Kashmiris and Basques, to take just a few examples, all have rights of self-determination, but that does not in and of itself mean that Canada, Turkey, Iraq, China, Morocco, Pakistan, India and Spain are belligerent occupiers, nor that Canada, et al lack territorial sovereignty over the relevant territories.

Denying Israel’s rights to try to force Israeli compromise is unsound. Unilaterally surrendering those rights in advance of hoped-for negotiations is shortsighted and has historically proven counterproductive. Most Israelis hope to be able to reach a peace deal in the future. Let’s not destroy the possibility by destroying Israel’s legal assets before the bargaining begins.

About the Author

The author is a professor at Bar Ilan University’s Faculty of Law and the University of San Diego Law School, a senior fellow at the Kohelet Policy Forum, and a visiting fellow at the Project on the Foundations of Private Law at Harvard Law School.